That review should take place within the next few months, Brian Moher, the researchers’ attorney, told us. The pair are pleased with the outcome, Moher told Retraction Watch:

The applicants are grateful for the court order yesterday directing that their application be heard by a full panel of the divisional court.

As part of the “impartial” review, Moher said, the divisional court will review materials that were part of the investigation by the University Health Network, affiliated with the University of Toronto. These include witness statements generated during the investigation, findings from committees, and other relevant documents. They will not conduct any additional interviews, he added.

This case represent a dangerous precedent! If this goes those “researchers” way, then every future scientific misconduct finding can and will be challenged in a court of law. Where it certainly does not belong! It must be settled in the court of Science.

“divisional court will review materials that were part of the investigation by the University Health Network, affiliated with the University of Toronto. These include witness statements generated during the investigation, findings from committees, and other relevant documents. They will not conduct any additional interviews”

What about additional papers which have come under scrutiny?
Will there be a new investigation?

[6] As long as there appear to be valid issues raised, that should be the end of the inquiry on the merits. In this case, I am satisfied that there appear to be issues that arise for determination.

[7] That said, I am not satisfied that either of the other two aspects of the analysis are made out in this case. I do not see the degree of urgency that would be required to establish jurisdiction under s. 6(2). The applicants have known of the adverse finding by the investigation committee for more than ten months. They have known about the denial of their appeal for more than four months. However, the judicial review application was not launched until June and then, for reasons that are not apparent, it was not served on the respondent until July.

[8] Further, the failure of the application to be heard on an urgent basis will not lead to a failure of justice. Any relief that the applicants may receive as a consequence of a successful review will be as effective a few months from now as it would be today. I note that the relief sought on the application is the quashing of the decision and a direction that a new hearing be held. The reality is that the impact on the applicants from this first determination will not be altered by any order for a new hearing until such time as the new hearing is held and a decision made. Further, whatever damage there has been to the applicants’ reputations and standing within the medical community is not damage that will be exacerbated by any delay in hearing the application nor will it be any less ameliorated by any relief that the applicants might obtain, if that relief is granted through a hearing in the ordinary course before a panel of the Divisional Court. I am also not satisfied there will be any loss of evidence or other procedural problems created if this matter follows the ordinary time line for a hearing.

[9] In the end result, the applicants have not satisfied the statutory requirements to give a single judge jurisdiction to hear their application for judicial review. I order that the matter be transferred to be heard by a panel of the Divisional Court on a date to be set by the Divisional Court Registrar.

COSTS

[10] I have endorsed the Motion Record, “For oral reasons this motion is dismissed. The underlying judicial review application is transferred to be heard by a panel of the Divisional Court on a date to be set by the Registrar. Costs of this motion are fixed in the amount of $7,500 inclusive of disbursements and HST to be disposed of as directed by the panel hearing the judicial review application.”

– – – – – – – – – – – – – –

So in this sense the court has granted a review – it is transferred to a panel of the Divisional Court some time later – but the judge apparently dismissed the motion to have a single judge hear their case now. Any lawyers care to elaborate on the legal fine points here?